Sanitary and Phytosanitary (SPS) Concerns in Agricultural Trade







Prepared for Members and Committees of Congress



Sanitary and phytosanitary (SPS) measures refer to any of the laws, rules, standards, and
procedures that governments employ to protect humans, other animals, and plants from diseases,
pests, toxins, and other contaminants. Examples of SPS measures include meat and poultry
processing standards to reduce pathogens, residue limits for pesticides in foods, and regulation of
agricultural biotechnology.
SPS measures can be barriers to trade in agricultural, food, and other products, according to the
World Trade Organization (WTO) and others. Notable U.S. disputes have included a European
Union (EU) ban on U.S. meats treated with growth-promoting hormones, which a WTO dispute
panel ruled was not supported by a risk assessment; and an EU moratorium on approvals of
biotechnology products. Foreign countries have often objected to various U.S. SPS measures as
well.
Multilateral trade rules allow governments to adopt measures to protect human, animal, or plant
life or health, provided that they do not discriminate or use them as disguised protectionism. This
principle was clarified in 1994 by WTO members’ approval, along with the other so-called
Uruguay Round Agreements, of the Agreement on the Application of Sanitary and Phytosanitary
Measures. This document sets out the basic rules for ensuring that each country’s food safety and
animal and plant health laws and regulations are transparent, scientifically defensible, and fair.
The United States also has signed, or is considering, numerous regional and bilateral free trade
agreements (FTAs) that may contain SPS language.
The United States participates actively in the three major international scientific bodies
designated by the WTO to deal with SPS matters: the Codex Alimentarius Commission for food
safety, the Office of International Epizootics (OIE) for animal health, and the International Plant
Protection Convention (IPPC) for plant health. These bodies meet often to discuss threats to
human and agricultural health, evaluate SPS-related disputes, and develop scientifically based
SPS standards, which can provide guidance for countries formulating their own national SPS
measures.
Although U.S. WTO officials frequently cite the benefits of SPS cooperation under trade
agreements, some, among them food safety and environmental advocacy organizations, have been
skeptical. They have argued that implementation of the agreements can result in “downward
harmonization” rather than upgraded health and safety standards. Defenders counter that trade
rules explicitly recognize the right of individual nations to enact stronger protections than
international guidelines if they believe they are appropriate and are justified by scientific risk
assessment.
In Congress, which must approve legislation if a trade agreement is to be implemented, many
Members are interested in how the FTAs might address SPS matters. Some Members may be
concerned that as trade agreements lower agricultural tariffs, more countries may turn to SPS
measures to protect their farmers from import competition. Also, U.S. SPS rights and obligations th
are relevant as the 111 Congress considers new measures to regulate imported foods.






What Are Sanitary and Phytosanitary Measures?............................................................................1
BSE-Related Beef Bans............................................................................................................2
EU Meat Hormone Dispute.......................................................................................................2
EU Biotechnology Approvals...................................................................................................3
Measuring Economic Impacts.........................................................................................................4
The U.S. SPS Framework................................................................................................................5
U.S. Regulatory System............................................................................................................5
Food and Agricultural Products..........................................................................................5
Biotec hnology ..................................................................................................................... 6
Homeland Security..............................................................................................................6
Other Relevant Programs....................................................................................................6
U.S. Strategy for Addressing SPS Concerns.............................................................................6
International Standards Bodies...........................................................................................7
Trade Capacity Building.....................................................................................................8
SPS Accomplishments Report...................................................................................................8
SPS Provisions in International Trade Agreements.........................................................................9
WTO (1994 Uruguay Round) SPS Provisions..........................................................................9
Basic Rights and Obligations............................................................................................10
Harmonization and Equivalence.......................................................................................10
Risk Assessment...............................................................................................................10
Tr ansparency ..................................................................................................................... 10
Regi onali za tion .................................................................................................................10
Implementation and Oversight..........................................................................................10
TBT Provisions........................................................................................................................11
Dispute Settlement Provisions.................................................................................................11
WTO Reviews of the SPS Agreement......................................................................................11
Doha Development Agenda....................................................................................................12
SPS Provisions in Regional and Bilateral Agreements...........................................................13
Other Opportunities for Addressing SPS Issues......................................................................15
The Cartagena Biosafety Protocol....................................................................................15
U.S.-EU Veterinary Equivalency Agreement....................................................................15
Bilateral Market Access Agreements................................................................................16
Concluding Observations..............................................................................................................16
Table 1. SPS Provisions in FTAs...................................................................................................13
Appendix A. Selected SPS Concerns Between the United States and Top Ten
Agricultural Trade Partners........................................................................................................18
Appendix B. WTO Formal Disputes Invoking SPS Agreement....................................................21






Author Contact Information..........................................................................................................24






Sanitary and phytosanitary (SPS) measures refer to any of the laws, rules, standards, and
procedures that governments employ to protect humans, other animals, and plants from diseases,
pests, toxins, and other contaminants. Examples of common SPS measures include meat and
poultry processing standards to reduce pathogens, residue limits for pesticides in foods,
fumigation requirements for grains and wood packing materials to kill pests, restrictions on food
and animal feed additives, and regulation of agricultural biotechnology, to name a few.
International trade rules recognize the rights and obligations of governments to adopt and enforce
such requirements. These rules are spelled out primarily in the World Trade Organization (WTO)
Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). A WTO
fact sheet cautions that countries can wield SPS measures as barriers to trade in agricultural, food,
and other products:
Sanitary and phytosanitary measures, by their very nature, may result in restrictions on trade.
All governments accept the fact that some trade restrictions may be necessary to ensure food
safety and animal and plant health protection. However, governments are sometimes
pressured to go beyond what is needed for health protection and to use sanitary and
phytosanitary restrictions to shield domestic producers from economic competition. Such
pressure is likely to increase as other trade barriers are reduced as a result of the Uruguay
Round agreements. A sanitary or phytosanitary restriction which is not actually required for
health reasons can be a very effective protectionist device, and because of its technical 1
complexity, a particularly deceptive and difficult barrier to challenge.
Technical barriers to trade (TBTs) are a related but different category of potential trade barriers.
TBTs also are used by governments to regulate markets, protect consumers, and preserve natural
resources, but not all TBTs are agricultural: automobile safety standards, cigarette labeling, and
pharmaceutical regulations are examples of nonagricultural measures. Examples of TBTs that
may affect trade in agricultural and food products include food ingredient or labeling
requirements, nutrition claims, quality attributes, animal welfare rules, and packaging 2
regulations.
As trade between two countries expands, more opportunities for disputes may arise. More than
half of all U.S. agricultural trade in FY2008 was with just five other markets: Canada (two-way
trade of $37.2 billion), the European Union (EU; $27.8 billion), Mexico ($22.9 billion), China
($17.2 billion), and Japan ($14.6 billion). So it may be no surprise that many of these countries
have been cited for numerous SPS-related barriers to imports of U.S. farm and food products. 3
However, similar barriers exist among many other U.S. agricultural trading partners as well.

1 Excerpted from Understanding the WTO Agreement on Sanitary and Phytosanitary Measures, at the WTO website,
http://www.wto.org/english/tratop_e/sps_e/spsund_e.htm. The WTO is the global organization that administers the
internationally agreed-upon rules of trade between nations.
2 A different WTO Agreement on Technical Barriers to Trade covers TBTs, including those related to food. This CRS
report focuses primarily but not exclusively on SPS measures. Some discussion of SPS and TBT can also be found
inCRS Report RL34468, The U.S. Trade Situation for Fruit and Vegetable Products, by Ree Johnson.
3 All two-way U.S. agricultural trade totaled nearly $195 billion in FY2008. Trade data accessed December 9, 2008,
from USDA’s Foreign Agricultural Service, U.S. Trade Internet System, at http://www.fas.usda.gov/ustrade/.





Congressional interest in SPS barriers in the past has most often focused on foreign barriers to th
U.S. food and agricultural exports. In the 110 Congress, attention began to shift to U.S. imports
of such products. This followed the emergence of evidence that adulterated pet food ingredients
from China had sickened or killed an unknown number of dogs and cats and been fed to some
food animals here and in Canada. Also, the U.S. Food and Drug Administration (FDA) issued
import alerts in 2007 to detain all farm-raised seafood from China, and in 2008 to detain all dairy 4
products and ingredients, both due to food safety concerns.
Following are narrative examples of several SPS problems U.S. exporters have encountered in
overseas markets. For a more extensive listing of SPS barriers and food-related TBTs between the
United States and its top 10 agricultural trading partners, see Appendix A.
After USDA reported, in December 2003, bovine spongiform encephalopathy (BSE, or mad cow
disease) in a Washington dairy cow imported from Canada, most countries banned U.S. beef and
cattle products. These included Japan, South Korea, Mexico, and Canada, which together had
purchased approximately 90% of U.S. beef exports. Only two U.S.-born BSE cases were found
among nearly 788,000 U.S. cattle tested during a 27-month special surveillance program.
Nonetheless, the BSE-related bans caused losses to the U.S. beef industry in 2004 alone that were 5
estimated at between $3.2 billion to $4.7 billion. Since then U.S. beef and veal exports have been
slowly rebuilding: they were valued at $3.5 billion in FY2008 compared with the FY2003 value
of $3.7 billion. Despite extensive U.S. evidence that the products are safe and that U.S. human
and animal health safeguards are effective, a number of these countries continue to limit the types
of U.S. beef and other cattle products that may be imported.
The EU in 1989 implemented a ban on the production and importation of meat from livestock
treated with growth-promoting hormones. The ban caused an estimated $100-$200 million in lost
U.S. exports annually. The EU justified the ban as protecting the health and safety of consumers,
but several WTO dispute settlement panels subsequently ruled that the ban lacked scientific
justification and was inconsistent with WTO trade rules. The EU refused to remove the ban, and
the United States declined an EU offer of compensation in the form of an expanded quota for
hormone-free beef. The U.S. government was granted the right to, and did, impose 100%
retaliatory tariffs on $116 million of EU agricultural imports. Efforts by both sides to resolve this
long-running dispute so far have not succeeded. A mixed WTO panel decision released on March
31, 2008 on the one hand informally ruled that the EU hormone ban did not comply with WTO
rules, but on the other hand ruled that the United States must take new steps if it is to maintain the
sanctions. On October 16, 2008, a WTO appellate body ruling essentially permitted the sanctions 6
to continue while leaving open the possibility for a continuing EU defense of its policy.

4 SeeChina Concerns inCRS Report RL34198, U.S. Food and Agricultural Imports: Safeguards and Selected Issues,
by Geoffrey S. Becker.
5 SeeCRS Report RS21709, Mad Cow Disease and U.S. Beef Trade, by Charles E. Hanrahan and Geoffrey S. Becker,
for more information and citations.
6 Sources: “In Hormones Case, U.S. Argues Against New Rules On Lifting Sanctions,” Inside U.S. Trade, June 20,
2008; “WTO Hormone Case Sets New Rules For Lifting Retaliatory Sanctions,” Inside U.S. Trade, April 4, 2008;
(continued...)





In May 2003, in WTO dispute settlement, the United States, along with Canada and Argentina,
challenged the EU’s de facto moratorium since 1998 on biotechnology product approvals.
Although the EU claimed to have lifted the moratorium in May 2004 by approving a genetically
engineered (GE) corn variety, the three complainants pursued the case, in part because a number
of EU member states continue to block biotech products, even those the EU itself deems
acceptable. The moratorium reportedly has cost U.S. corn growers some $300 million in exports
to the EU annually. The EU approach presumes that the products of biotechnology are inherently
different from their conventional counterparts and should be more closely regulated; the United
States, Canada, and Argentina believe they are not. On February 7, 2006, the WTO dispute panel
agreed in part with the complainants’ arguments, ruling in its interim confidential report that a
moratorium had existed, that bans on EU-approved GE crops in six EU member countries
violated WTO rules, and that the EU failed to ensure that its approval procedures were conducted
without “undue delay.” The WTO Dispute Settlement Body adopted the panel’s report on
November 21, 2006. Since then, the United States has been attempting to negotiate with the EU 7
to speed GE approvals, although progress reportedly has been slow.
Numerous nations have argued that the United States maintains its own—in their view, frequently
unjustifiable—SPS measures and TBTs. Past examples they have proffered include a prohibition
against shrimp imports from Southeast Asian countries because their trawlers do not use the type
of nets required of U.S. shrimpers to protect sea turtles (the WTO has since ruled that the ban was
applied in a discriminatory manner); overly burdensome animal disease rules affecting EU
imports; new mandatory country-of-origin labeling at retail for fresh meats and produce; and U.S.
import restrictions against more than 100 products because foreign pest risk analyses have not
been completed. Noting that agricultural trade must freely move in both directions, many analysts
argue that if U.S. challenges to other nations’ measures are to have credibility, U.S. interests must
be prepared to acknowledge their own barriers and to negotiate their removal.
This approach is viewed with suspicion by some critics that include a number of consumer
advocacy organizations. For example, a July 2007 report by Public Citizen’s Global Trade Watch
asserted that some of the recently negotiated free trade agreements “prioritize facilitating access
for imports over consumer safety”—by committing the United States to defer to substandard
foreign safety regulations and thus exposing consumers to even more potentially unsafe imported 8
foods. The Office of the U.S. Trade Representative (USTR) responded with a fact sheet arguing
that all of the trade agreements permit the United States to “unilaterally determine the appropriate
level of protection for food products” and that no foreign country can force the United States to 9
accept unsafe products or lower safety standards. Consumer advocates countered that although
all imported foods must by law meet U.S. safety standards, U.S. officials have been unwilling or

(...continued)
U.S.-EU beef hormone dispute to go public,” Food Chemical News, July 14, 2008; “WTO rules in favor of U.S. beef
hormone sanctions,” Food Chemical News, October 20, 2008.
7 SeeCRS Report RS21556, Agricultural Biotechnology: The U.S.-EU Dispute, by Charles E. Hanrahan.
8 Public Citizen’s Global Trade Watch. Trade Deficit in Food Safety: Proposed NAFTA Expansions Replicate Limits on
U.S. Food Safety Policy That Are Contributing to Unsafe Food Imports. July 2007.
9 USTR, “U.S. Food Safety and Trade: Myth vs. Fact, accessed October 12, 2007 at http://www.ustr.gov/
Document_Library/Fact_Sheets/2007/Section_Index.html.





unable to enforce the standards, especially at a time when imports are, in critics’ view, far
outpacing inspection resources.

SPS barriers and agriculture-related TBTs can impose significant economic costs on agricultural
and food exporters, by forcing them to make expensive changes in production or marketing in
order to comply. A foreign SPS action can halt all imports of a product, resulting in major losses
for the exporting industry.
The Office of the U.S. Trade Representative (USTR) annually publishes a lengthy report
documenting foreign trade and investment barriers and U.S. efforts to reduce them. This report,
required by the Omnibus Trade and Competitiveness Act of 1988 (P.L. 100-418), categorizes,
describes, and in some cases quantifies these barriers on a country-by-country basis. Sixty-two 10
major trading partners are covered in the 2008 report. SPS measures and TBTs are generally
detailed in each country’s profile and, where feasible, their impacts on U.S. exports are quantified
by USTR.
Understanding the total costs of agricultural non-tariff barriers (NTBs) such as SPS and TBT
measures can be helpful for gauging the overall level of trade protection that various countries
enjoy, and for determining how much importance to assign to reducing such barriers in trade
negotiations. However, efforts to inventory and quantify these barriers have proven challenging.
One difficulty is that, “since NTBs lack tariffs’ transparency and are often embedded within
complex regulatory schemes, reducing these NTBs generally requires more work than reducing 11
tariffs does.”
Two USDA agencies, the Economic Research Service (ERS) and the Foreign Agricultural Service
(FAS), attempted to estimate the impacts on U.S. exports in 1996, using information gathered
from, among other sources, USDA’s foreign agricultural attaches and industry groups. Working
from that database, FAS found in 1997 more than 350 measures negatively affecting an estimated
$5.8 billion in potential U.S. agricultural exports. East Asia had the most technical barriers, with
an estimated impact on U.S. exports of nearly $2.9 billion. The Americas accounted for nearly
$1.3 billion and Europe for more than $900 million. Processed products accounted for about $1.3
billion of the $5.8 billion total. Others were grains and oilseeds (about $1.3 billion); animal
products (nearly $900 million); fruits and vegetables (over $600 million); and “other products” 12
including cotton, seeds, nuts, fish and forestry products (about $1 billion in all).
Other studies have attempted to estimate the trade losses of all food-related NTBs—not only SPS
measures and TBTs but also import quotas, safeguard measures, licensing rules, and so forth.

10 Office of the U.S. Trade Representative (USTR), 2008 National Trade Estimate Report on Foreign Trade Barriers,
at http://www.ustr.gov/Document_Library/Reports_Publications/2008/2008_NTE_Report/Section_Index.html?ht=.
11 Scott Bradford, The Extent and Impact of Food Non-Tariff Barriers in Rich Countries, Brigham Young University
research paper, January 2006.
12 See, for example, David Orden and Donna Roberts, Foreword to Understanding Technical Barriers to Agricultural
Trade, proceedings of a conference of the International Agricultural Trade Research Consortium, January 1997;
Roberts and Kate DeRemer, Overview of Technical Barriers to U.S. Agricultural Exports (Staff Paper AGES-9705),
March 1997; Roberts, Timothy E. Josling, and David Orden, A Framework for Analyzing Technical Trade Barriers in
Agricultural Markets (Technical Bulletin 1876).





One, by Bradford, uses internationally comparable price data to estimate the tariff equivalents of
the food-related NTBs employed by nine “rich” nations of the OECD (Organisation for Economic
Cooperation and Development). Bradford’s computer simulation suggests that if all food NTBs
there were removed, economic welfare would increase annually by $185 billion in eight of these
“rich” countries and by $50 billion in less developed countries. Bradford finds that Japan and the
EU have the highest levels of non-tariff protection, while the United States has the lowest among 13
the countries studied.

The United States, like other countries, has in place an extensive, often intersecting, system to
protect consumers from unsafe food and agricultural products and to protect its animal and plant
resources from foreign pests and diseases. A variety of statutes and implementing regulations,
directives, and administrative procedures underpin this system. These essentially constitute the
nation’s SPS measures. Major authorities are briefly described below.
At the same time, U.S. officials work cooperatively with other governments, frequently within
international scientific bodies, to develop commonly recognized guidelines for SPS measures
(and TBTs) that will promote balanced but safe trade in plants, animals, agricultural and food
products.
Within the Department of Health and Human Services, the Food and Drug Administration (FDA)
oversees the safety of most human and animal foods and drugs, primarily under the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. §301 et seq.). The primary exceptions are meat and poultry
and their products, which are regulated by USDA’s Food Safety and Inspection Service (FSIS)
under the Federal Meat Inspection Act (21 U.S.C. §601 et seq.) and the Poultry Products 14
Inspection Act (21 U.S.C. §451 et seq.). USDA’s Animal and Plant Health Inspection Service
(APHIS) has lead responsibility for animal and plant health under the Animal Health Protection
Act (7 U.S.C. §8301 et seq.) and the Federal Plant Protection Act (7 U.S.C. §7701 et seq.).
Pesticides are regulated by the independent Environmental Protection Agency (EPA) under the
Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. §136 et seq.).
Each of the responsible agencies has promulgated an extensive body of regulations to implement
these laws, all of which apply to imports as well as domestic products. For example, plants,
animals, and their products require an APHIS import permit. Whether a product can be imported
and the conditions for entry are dependent upon an APHIS risk assessment of a product and
where it originated, taking into account internationally recognized scientific guidelines—i.e., for
animal health, the Office of International Epizootics (OIE), and for plant health, the International
Plant Protection Convention, (IPPC). The risk assessment usually culminates with formal rules in
the Federal Register. FSIS evaluates foreign meat and poultry programs to ensure their

13 The Extent and Impact of Food Non-Tariff Barriers in Rich Countries.
14 The 2008 farm bill (P.L. 110-246) added catfish to USDA’s mandatory inspection regime.





equivalency with U.S. requirements and reinspects samples at the border. FDA requires imports to 15
comply with the same safety and labeling standards that apply to domestic foods.
The basic federal guidance for regulating biotechnology products is the Coordinated Framework
for Regulation of Biotechnology (51 Fed. Reg. 23302), published in 1986 by the White House
Office of Science and Technology Policy (OSTP). A key principle is that genetically engineered
products should continue to be regulated according to their characteristics and unique features,
not their production method—that is, whether or not they were created through biotechnology.
The framework relies on existing statutory authority (such as those noted above) and regulations
to ensure the safety of biotechnology research and products, including food and agricultural 16
products.
After the 2001 terrorist attacks, Congress created the Department of Homeland Security, whose
agents now play a major role in inspections of imports, including food and agricultural products.
Most of APHIS’s border inspection functions and personnel were moved into the new department.
Congress also passed the Public Health Security and Bioterrorism Preparedness and Response Act
of 2002 the (“Bioterrorism Act,” P.L. 107-188), which requires all foreign as well as domestic
food manufacturing and related companies to register with the FDA, and requires that the FDA
receive prior notifications of all food imports into the United States.
In addition to these major authorities, numerous other laws provide the basis for U.S. SPS
measures and TBTs. The Agricultural Marketing Agreement Act of 1937 (7 U.S.C. 601 et seq.) is
an example of a TBT-related law. This law, among other things, provides the authority for
requiring imported commodities to meet the same or similar grade, size, or other quality
requirements as domestic products if they are regulated by a federal marketing order. Within the
U.S. Department of Commerce, the National Oceanic and Atmospheric Administration enforces
provisions of the Marine Mammal Protection Act and the Endangered Species Act that require
certain fishing techniques to protect, respectively, dolphins and sea turtles.
The U.S. process for identifying and dealing with SPS (and TBT) issues is an important
consideration. For agriculture, most of this effort is coordinated, at least in the initial stages, by
staff of FAS, the lead USDA trade agency. FAS staff maintain a database on foreign SPS and
agriculture-related TBT measures with a potential impact on trade, even those which may comply
with WTO or other international trade agreement provisions.

15 The adequacy of the U.S. system that oversees the safety of imported foods has come under considerable scrutiny
recently. See also U.S. Food and Agricultural Imports: Safeguards and Selected Issues.
16 SeeCRS Report RL32809, Agricultural Biotechnology: Background and Recent Issues, by Geoffrey S. Becker and
Tadlock Cowan.





An office of FAS is the designated WTO “enquiry” point for communicating with other countries 17
on SPS measures. This office also shares information with and from industry groups and
exporters, USTR, FAS’s overseas posts, and various regulatory agencies such as USDA’s Animal
and Plant Health Inspection Service and Food Safety and Inspection Service, the Environmental
Protection Agency, and the HHS Department’s Food and Drug Administration.
FAS has chaired regular meetings of USDA technical staff from various USDA agencies to
discuss the status of emerging and ongoing SPS/TBT issues, including options for resolving a
potential dispute. More broadly, USTR chairs an interagency group (i.e., both USDA and non-
USDA agencies with SPS responsibilities) that meets regularly on WTO SPS issues.
When SPS and TBT concerns arise, technical and other government officials usually initiate at
least informal dialogue with countries concerning the measure in question. They also are
communicating with affected industries in the private sector, both to keep them informed and to
gather additional information. It is at this level that an SPS issue is most likely to be resolved
when USDA or other government experts discuss its scientific aspects with their foreign
counterparts. These staff-level discussions often help the importing and exporting parties to
clarify their differences, and to determine mutually acceptable conditions for importing the
affected product that will not compromise the importing party’s safeguards.
However, not all problems can be solved in this manner. Eventually, bilateral consultations with
the foreign country over an outstanding SPS or TBT issue might be pursued by USTR, with
USDA’s assistance. USTR also can decide at any point to elevate the issue via a complaint to the
WTO or, if a Canadian or Mexican measure, the North American Free Trade Agreement 18
(NAFTA), triggering formal dispute resolution procedures. (Other FTAs generally defer dispute
settlement to the WTO procedures.)
USDA officials noted that in more recent years, they have been taking a more “holistic” approach
to SPS work than in the past. Rather than simply identify and try to fix each SPS-related trade
problem as it arises, they attempt to forestall possible disputes by (1) cooperating with other
governments in international scientific forums and (2) supporting “capacity building” within 19
countries that lack satisfactory regulatory systems or that are new to the world trading system.
Three major international organizations with SPS roles are the Codex Alimentarius Commission
for food safety, the OIE for animal health and diseases, and the IPPC for plant health. U.S.

17 WTO members are required to notify the WTO of their SPS measure whenever there is no international standard or
the SPS measure substantially differs from the international standard and the measure may have a significant effect on
trade among WTO members (SPS Agreement, Annex B). See alsoSPS Language in International Trade Agreements
later in this report. The United States made more than 800 SPS notifications between August 2005 and early December
2008 alone.
18 Sections 301 et seq. of the Trade Act of 1974 delineate the domestic legal authority and procedures for U.S. officials
in investigating and challenging unfair trade practices, and enforcing U.S. rights under international trade agreements.
Interested parties, including agricultural groups, can—and do—petition USTR to initiate such procedures under Section
301 if they believe that a challenge is warranted and that the Administration is not addressing the issue. For an
explanation of Section 301, see House Committee on Ways and Means, Overview and Compilation of U.S. Trade
Statutes (2005 Edition; WMCP 109-4), June 2005, beginning on page 120.
19 Personal communication with Bob Macke, FAS, and Eric Nichols, APHIS, May 5, 2006.





government scientists participate actively in these organizations, which meet periodically to
discuss current and anticipated threats to human and agricultural health, evaluate SPS-related
disputes, and develop common, scientifically based SPS standards. Such standards are voluntary
and are intended to provide guidance for countries in formulating their own national SPS
measures and, ultimately, to help resolve trade disputes.
For example, in 2004 and 2005, the United States joined with Canada and Mexico in gaining key
changes to the OIE’s guidelines for recognizing the trade status of countries with BSE (bovine
spongiform encephalopathy, or mad cow disease). The revised guidelines seek to emphasize the
effectiveness of a country’s BSE safeguards rather than merely the number of cases it reports.
Using the new guidelines, the OIE in May 2007 formally recognized the United States, Canada,
and four other countries as having “controlled BSE risk,” essentially supporting these countries’ 20
arguments that many types of their beef products should be accepted for import.
WTO members have agreed to provide technical assistance and outreach to other members,
particularly developing countries. Overarching objectives are to help them understand the SPS
provisions in international agreements, their scientific basis, the fundamentals of risk assessment,
and how to build and administer regulatory programs. USDA administers a number of programs
to build foreign expertise in biotechnology, food safety, animal health, and plant health, such as
the Cochran Fellowships, which train senior and mid-level agricultural officials from middle-
income countries and emerging democracies.
The Agricultural Growth and Opportunity Act (AGOA; 19 U.S.C. 3701 et seq.) seeks to spur
economic development and help integrate Africa into the world trading system through U.S. trade
preferences and other benefits to Sub-Saharan African countries that meet certain criteria relating
to market reform and human rights. Among many AGOA provisions are those which emphasize
U.S. technical assistance to improve these countries’ compliance with U.S.-type SPS 21
requirements.
APHIS has published an annual report which attempts to document and quantify the value of its
“accomplishments” in reducing SPS barriers. In FY2007, for example, APHIS resolved 61 trade-
related issues permitting U.S. exports with a market value of approximately $1.3 billion to occur 22
in more than 25 countries, according to the report.

20 OIE Resolution No. XXI, Recognition of the Bovine Spongiform Encephalopathy Status
of Member Countries, accessed on the Internet on October 12, 2007 at http://www.oie.int/eng/info/
en_statesb.htm?e1d6.
21 SeeCRS Report RL31772, U.S. Trade and Investment Relationship with Sub-Saharan Africa: The African Growth
and Opportunity Act and Beyond, by Danielle Langton.
22 APHIS, SPS Accomplishments Report, Fiscal 2007. More detailed breakouts by commodity and country appear in
tables accompanying the report. The SPS issues in the report are limited to those for which APHIS has lead
responsibility—i.e., animal and plant health but not food safety. Most of this reported value$1.2 billion—was
resolution of trade issues in order to retain existing sales (mostly produce/horticultural shipments to NAFTA partners
Mexico and Canada), not to new or expanded markets.





The report also notes that APHIS implemented a number of changes to its own import
requirements that provided new or expanded market access for 10 countries and a total of 12
commodities. This reverse trade was valued at approximately $5 million in FY2007.

In recent years, the United States has concluded or is negotiating a growing number of
multilateral, bilateral, and regional trade agreements. These agreements aim to reduce the tariffs,
import quotas, and other barriers that countries use to limit imports and to protect their domestic
industries, including agriculture. As tariffs decline or disappear, scrutiny can shift to use of SPS
measures, which are another way nations may attempt to protect their domestic producers from 23
import competition.
Present multilateral rules date back to the development and signing of the General Agreement on
Tariffs and Trade (GATT) in 1947. A number of subsequent negotiating rounds led up to the 24
establishment of the WTO on January 1, 1995. The WTO is responsible for administering the
multilateral agreements. The current set which now governs global trade are known collectively
as the Uruguay Round (UR) Agreements. The UR Agreements are designed to set out clear
(transparent) and fair trade rules and to eliminate policies that distort and reduce trade among
countries. Examples of such policies may be domestic and export subsidies, import tariffs, import
quotas, restrictions on foreign investment, arbitrary and unscientific regulations, among others.
The agreements also spell out procedures for global trade cooperation, such as periodically
reviewing individual countries’ trade commitments, policies and performance, and for resolution
of trade disputes.
With regard to SPS measures, GATT Article XX allows governments to adopt measures necessary
to protect human, animal or plant life or health, provided that they do not arbitrarily or
unjustifiably discriminate or use this as disguised protectionism. This principle was clarified in
1994 by WTO members’ adoption, along with the other UR agreements, of the Agreement on the
Application of Sanitary and Phytosanitary Measures (the SPS Agreement). This document sets
out the basic rules for ensuring that each member country’s food safety and animal and plant
health laws and regulations are transparent, scientifically supportable, and fair.
Among the areas covered by the SPS Agreement are the following.25

23 U.S. political leaders have sought multilateral, bilateral, and regional trade agreements to achieve several
longstanding, and interrelated, trade policy objectives. These objectives are to expand markets for U.S. exports, protect
domestic industries from unfair trade practices, promote world economic growth, and support foreign policy and
national security. See, for example,CRS Report RL31356, Free Trade Agreements: Impact on U.S. Trade and
Implications for U.S. Trade Policy, by William H. Cooper. Other sources for this section include the websites of the
USTR at http://www.ustr.gov and the WTO at http://www.wto.org/english/thewto_e/thewto_e.htm.
24 As of May 2008, 152 countries were WTO members.
25 The text of the SPS agreement can be accessed through the following WTO website: http://www.wto.org/english/
tratop_e/sps_e/spsund_e.htm.





Members have the right to take SPS measures “necessary for the protection of human, animal, or
plant life or health,” as long as they are not inconsistent with the language of the SPS Agreement,
are “based on scientific principles,” “not maintained without sufficient scientific evidence,” “do
not arbitrarily or unjustifiably discriminate ... ,” and are “not applied in a manner which would
constitute a disguised restriction on international trade” (excerpts from Article 2). Members could
have SPS measures that result in a higher level of protection than relevant international standards,
but only under prescribed circumstances such as scientific justification (as in Article 3.3, under
“Harmonization.”)
To facilitate trade, countries are encouraged to use relevant international standards and work
toward harmonization—that is, the adoption of common SPS measures. To promote
harmonization, the agreement cites, as sources of scientific expertise and globally recognized
standards for food safety, Codex Alimentarius; for animal health and diseases, OIE; and for plant
health, IPPC. Equivalence means that each importing country must accept the SPS measures of
another country as equivalent to its own (even if they are not exactly the same), as long as the
exporting country objectively demonstrates to the importing country that its measures achieve the
same level of protection. (Harmonization and Equivalence are covered under Articles 3 and 4,
respectively).
The agreement requires member countries to base their SPS measures on an appropriate
assessment of the actual risks involved, taking into account internationally recognized risk
assessment techniques (Article 5).
In recognition that SPS regulations can be unclear or even capricious, countries must have a
mechanism for notifying others in advance about measures that could affect trade, and providing
a means to ask questions about, and comment on, them. Each must have an office, or “Enquiry
Point,” to respond to requests for more information on new or existing measures (Article 7).
Until recently, a country tended to ban an entire country’s exports (of a product) from entry, if
that product was associated with an unwanted pest or disease in the exporting country. That is, all
such products from the exporting country were prohibited, even if they came from a region
without the disease or pest. Regionalization provides for acceptance of such imports if the
exporting country can demonstrate that they are from a disease-free or pest-free area (Article 6).
Within other articles of the agreement are provisions that permit developing countries to delay
compliance with respect to SPS measures affecting imports, and that establish an SPS committee





within the WTO to provide a forum for information exchange, to periodically review
implementation of the agreement and governments’ compliance with it, to monitor progress in
global harmonization of standards, and to work closely with the appropriate technical
organizations on SPS matters. The committee has met approximately 35 times since the
agreement’s inception.
Another UR document of related significance is the Agreement on Technical Barriers to Trade. It
“protects the right of Members to adopt measures which ensure the quality of exports; protect
human, animal, or plant life; protect the environment; or prevent deceptive practices, as long as
these measures do not breach the disciplines set forth in the [TBT] Agreement. Many of the
disciplines in the TBT agreement are essentially identical to those in the SPS agreement
[including the obligation to notify and allow for comments on proposed standards affecting
trade], but the TBT Agreement explicitly states that SPS measures are bound only by the terms of 26
the SPS agreement.”
As noted, governments can, and often do, resolve SPS (and other trade) disagreements informally
through bilateral and multilateral discussions, usually among technical experts (e.g., scientists,
health professionals) and, if necessary, higher-level trade officials. Those which cannot be
resolved may be elevated to formally established dispute procedures. Within the WTO, these
procedures are spelled out in another UR agreement called the Understanding on Rules and
Procedures Governing the Settlement of Disputes. Under the pre-UR dispute settlement
procedures, a country involved in the dispute could effectively block a decision against it, which
is not permissible under the current procedures.
If a WTO dispute settlement panel ultimately determines that a country’s SPS (or TBT) measure,
for example, is inconsistent with WTO obligations, and WTO members adopt the panel or any
appellate body report, the defending country is expected to withdraw the measure. Compensation
and retaliation are available as temporary remedies. If compensation is not provided to the
complaining country by the defending country, and the two still fail to reach a mutually
acceptable solution, the WTO panel can authorize trade retaliation if the complaining country so
requests. Such retaliation generally takes the form of higher tariffs against a portion of the 27
defending country’s exports to the complaining country.
The WTO SPS Agreement provides for a periodic review, by the SPS committee, of the
agreement’s operation and implementation. The first review was conducted in March 1999; a
second, the most recent, was in June 2005. Although the agreement had been in force for 10 years
at the time of this second review, the committee reported that some WTO members were “still in

26 Overview of Foreign Technical Barriers to U.S. Agricultural Exports.
27 For more on dispute settlement, seeCRS Report RS20088, Dispute Settlement in the World Trade Organization: An
Overview, by Jeanne J. Grimmett.





the process of adjusting to and implementing the new disciplines.” Nonetheless, the agreement
has benefitted both importing and exporting nations. No member had proposed changes to the 28
basic provisions or questioned its science-based requirements.
During these two reviews, the committee discussed at length the range of SPS issues and
proposals, from equivalence, transparency, and harmonization in standards among countries to
technical assistance and special and differential treatment for development countries and dispute
resolution. Also discussed at the second review were specific trade-related SPS concerns raised
by WTO members, cooperation within the three standard-setting bodies (Codex, OIE, and IPPC),
and clarification of terms and SPS provisions, among other topics. The 2005 report includes
recommendations on each of these topics.
Over the first 13 years of the SPS agreement (1995-2007), various members had brought 261
specific SPS trade problems to the committee. Ninety-three of them were reported by WTO to
have been resolved or partially resolved. By subject, 42% were related to animal health, 28% to 29
plant health, 26% to food safety, and 4% to other concerns.
Not all of these disputes were raised to the level of a formal complaint, however. Of the 378 trade
disputes of all types that were formally brought to the WTO’s dispute settlement system from

1995 through early December 2008, 31 have been alleged violations of the SPS agreement.


Appendix B lists these SPS disputes and their status as of May 2008.
The November 2001 Doha Declaration launched the most recent round of multilateral
negotiations to reform trade. This round has not yet been concluded, in part because WTO
members have been unable to settle their wide differences over how to further reform trade in
agricultural products. Negotiators are attempting to reach agreement across three broadly 30
inclusive agricultural “pillars”: export subsidies, domestic support, and market access.
The 1994 SPS agreement itself is not being renegotiated. However, the Doha Declaration does
instruct governments to address a variety of SPS implementation issues and concerns which were
raised mainly by developing countries. More specifically, the Doha Declaration:
• clarifies that in the 1994 SPS agreement, the “longer timeframe” given to
developing countries to comply with other countries’ new SPS measures is
normally meant to be at least six months;
• clarifies that the 1994 agreement’s “reasonable interval” between publication of a
country’s new SPS measure and its entry into force should also mean, normally,
at least six months;

28 WTO, Committee on Sanitary and Phytosanitary Measures, Review of the Operation and Implementation of the
Agreement on the Application of Sanitary and Phytosanitary Measures (G/SPS/36), adopted by the committee on June
30, 2005.
29 WTO, Committee on Sanitary and Phytosanitary Measures, Specific Trade Concerns (G/SPS/GEN/204.Rev. 8),
March 27, 2008.
30 SeeCRS Report RL33144, WTO Doha Round: The Agricultural Negotiations, by Charles E. Hanrahan and Randy
Schnepf.





• instructs the SPS committee to develop expeditiously a more specific program
for all countries to make use of the agreement’s equivalency provisions;
• directs the SPS committee to review the operation of the agreement at least once
every four years;
• urges the WTO Director-General to continue to facilitate developing countries’
participation in the development of international SPS standards; and
• encourages WTO members to provide the necessary financial and technical
assistance to enable least-developed countries to implement the SPS agreement
and to respond to measures that could impair their trade.
Bilateral and regional agreements between the United States and other countries also can and do
contain references to SPS and TBT matters (see Table 1). However, with the exception of the
North American Free Trade Agreement (NAFTA), such provisions generally are not as extensive
as in the UR agreements. These FTAs are not intended to address any specific SPS disputes or
issues between the United States and the other country or countries. But U.S. negotiators at times
have taken advantage of the negotiating sessions leading up to an agreement, or the subsequent
ratification and implementation period, to raise and attempt to resolve such outstanding issues.
For example, during the U.S.-Australia FTA negotiations, U.S. officials secured a commitment
from Australia that it would work to ease inspection procedures that have impeded U.S. imports
of pork, citrus, apples and stone fruit. In a side letter to the 2006 proposed U.S.-Peru FTA, Peru
pledges to use international standards in opening its markets to U.S. beef and pork. Similar side
letters accompany recent FTAs with other Latin American countries.
Foreign countries also have used the FTA arena to press their own concerns about U.S. SPS
measures or TBTs. For example, in a side letter to the pending U.S.-Colombia FTA, the United
States agreed to meet on the issue of labeling non-Colombian coffee as Colombian.
Recently concluded trade agreements reference each party’s rights and obligations under the
WTO SPS agreement, and some establish standing committees to consult on and resolve SPS
problems on an ongoing basis. These provisions generally reflect U.S. SPS objectives that the
Administration has enunciated in letters notifying Congress of its intent to negotiate various
FTAs.
Table 1. SPS Provisions in FTAs
Agreement SPS Provisions
North American FTA: NAFTA, SPS provisions contained in Section B of Chapter Seven, Agriculture and
between United States, Canada, and SPS Measures; much more extensive than in other bilateral and regional
Mexico; entered into force 1/1/94. FTAs. Generally parallel provisions in UR SPS agreement. Also contains
(in Chapter 20) dispute resolution mechanism for challenging SPS
barriers. Those bringing dispute can choose either the WTO or NAFTA
process; in SPS cases, respondent can steer dispute into NAFTA arena
under certain circumstances.
U.S.-Israel FTA: Earliest FTA; Article 9 (Health) directs two sides to review their veterinary and plant
entered into force 9/1/85. health rules to ensure they are applied in a nondiscriminatory manner
and do not obstruct trade. Also calls for consultations over any





Agreement SPS Provisions
difficulties to “ ... allow trade in agricultural products insofar as they do
not endanger animal and plant health.”
U.S.-Jordan FTA: No SPS section. However, a separate Joint Statement on WTO Issues
Entered into force 12/17/01. recognizes encourages consultations on SPS equivalence.
U.S.-Singapore FTA: No SPS section, but declares in preamble both parties’ commitment to
Entered into force 1/1/04. reduction of technical and SPS barriers to trade.
U.S.-Chile FTA: Chapter Six reaffirms both countries’ rights and obligations under WTO
Entered into force 1/1/04. SPS agreement; also establishes bilateral committee to enhance
understanding of each’s SPS measures and to consult extensively and
regularly on SPS matters.
U.S.-Australia FTA: Chapter VII reaffirms both countries’ rights and obligations under WTO
Entered into force 1/1/05. SPS Agreement; establishes committee like that in Chile FTA. Further
directs USDA-APHIS and counterpart, Biosecurity Australia, to chair
standing technical working group intended to address, on an ongoing
basis, all trade-related SPS matters that arise during each country’s
rulemaking and risk assessment processes. Side letters agree to
cooperate on securing science-based international standards on BSE.
U.S.-Morocco FTA: Chapter 3-B reaffirms rights and obligations of both parties under the
Entered into force 1/1/06 WTO SPS agreement. No SPS committee. Side letter intended to
facilitate exports of U.S. beef and poultry by addressing Morocco’s
concerns about antibiotics and other substances in beef and poultry.
U.S.-Dominican Republic-Central DR-CAFTA reaffirms all parties’ rights and obligations under WTO SPS
American FTA: agreement, establishes standing SPS committee like that in the Chile and
Between United States, Dominican Australia agreements, but further specifies which agencies in each
Republic (DR), Costa Rica, El country to be represented. Side letters with Costa Rica and El Salvador
Salvador, Guatemala, Honduras, agree to cooperate with the United States on scientific and technical
Nicaragua, approved by Congress in work to achieve market access for poultry. U.S. side letter with DR
2005; entered into force for El states that the DR “shall not grant or deny import licenses based on
Salvador 3/1/06; Honduras and sanitary or phytosanitary concerns, domestic purchasing requirements,
Nicaragua, 4/1/06; Guatemala, 7/1/06; or discretionary criteria. [DR] shall enforce any sanitary or phytosanitary
DR, 3/1/07. Costa Rica approved by measures that it imposes separately from its import-licensing system.”
U.S. 8/2/05; implementation pending.
U.S.-Bahrain FTA: SPS chapter (Six) reaffirms two countries’ rights and obligations under
Entered into force 8/1/06. the WTO SPS agreement. No SPS committee.
Proposed U.S.-Andean Nations Chapter Six in both agreements reaffirms parties’ rights and obligations
FTA: under the WTO SPS agreement and creates a standing committee to
Agreement with Peru signed 4/12/06; address SPS matters. Each has S&P side letters attached to agreement.
President signed implementing bill on (With progress stalled on a regional FTA, the United States has worked
12/14/07 (P.L. 110-138). Agreement to forge bilateral agreements with the Andean nations.)
with Colombia signed 11/22/06;
implementing legislation sent to
Congress 4/8/08.
U.S.-Oman FTA: Both parties reaffirm their rights and obligations under WTO SPS
Signed Jan. 19, 2006; U.S. approved agreement. No SPS committee.
9/26/06; awaits Oman ratification.
U.S.-Panama FTA: Chapter Six reaffirms two countries’ rights and obligations under the
Signed 6/28/07. WTO SPS agreement and creates a standing committee to address SPS
matters. In a separate SPS agreement, Panama is to accept equivalency of
the U.S. meat and poultry inspection system; to provide access for all
U.S. beef and poultry, and related products, on the basis of accepted
international standards; to streamline import documentation
requirements for U.S. processed foods; and to affirm recognition of the
U.S. beef grading system, among other things.





Agreement SPS Provisions
U.S.-South Korea FTA: Chapter Eight reaffirms two countries’ rights and obligations under the
Signed 6/30/007. WTO SPS agreement and creates a standing committee to address SPS
matters. (The FTA would not directly address the reopening of Korea to
U.S. beef, which was banned in Dec. 2003 due to BSE concerns. As of
Oct. 2007 the market ws still largely closed, and some in Congress have
signaled the FTA will not be considered until Korea begins accepting
more significant quantities.)
Sources: USTR;CRS Report RL31356, Free Trade Agreements: Impact on U.S. Trade and Implications for U.S. Trade
Policy (Cooper).
Besides the broader trade agreements cited above, the United States and other governments
frequently employ other types of mutual agreements, memoranda, and letters to deal specifically
with SPS-related concerns and/or to formalize mutually acceptable conditions for trade in food
and agricultural goods. The following are some notable examples of these arrangements.
The protocol, an outgrowth of the 1992 U.N. Convention on Biological Diversity (CBD), is a
multilateral agreement intended to provide for the safe handling, transfer, and international
movement of living modified organisms. Approximately 100 countries have signed the protocol,
which enables countries to obtain information about biotech organisms before they are imported
and recognizes countries’ right to regulate them consistent with international agreements, among
other provisions. Because the United States is not a party to the 1992 CBD, it cannot be a party to
the protocol, but it attempts to work with the ratifying countries to ensure that implementation
does not harm U.S. exports.
The United States and the EU signed this agreement in July 1999. It is aimed at facilitating trade,
through mutual recognition by each party that the other’s SPS standards for animal products—
even where not identical—provide an equivalent level of protection to public and animal health.
The agreement has preserved several billion dollars annually in two-way trade in animals and
products, according to USDA. Despite the agreement, U.S. exporters continue to encounter major
barriers to a number of important products. For example, the EU was expected to import more
than 670,000 metric tons of broiler meat in 2008, but the United States, a major world supplier,
has not supplied any for some time. The EU’s 1997 ban on the use of anti-microbial treatments
for sanitizing poultry carcasses effectively halted U.S. poultry exports to the EU, even though the 31
use of anti-microbial treatments is approved by FDA.

31 USDA, FAS, Analysis of U.S. Poultry Meat Trade with the EU: Past, Present, Future (GAIN Report E35166),
August 25, 2005. Also, USDA, FAS, Livestock and Poultry: World Markets and Trade, October 2008. For a more
detailed discussion of the situation, see USDA, FAS, Poultry and Products: EC Amends Poultrymeat Product
Standards and Publishes a Marketing Proposal (GAIN Report E48066), June 19, 2008, at http://www.fas.usda.gov/
gainfiles/200806/146294952.pdf.





One of the steps required of countries seeking to join the WTO is the completion of bilateral
market access agreements with other countries. On May 31, 2006, the United States signed such
an agreement with Vietnam. Part of that agreement commits Vietnam to recognize the U.S. beef,
pork, and poultry inspection as equivalent to its own; to implement regulations governing shelf-
life and biotechnology in a non-trade disruptive manner; and to resume trade in U.S. bone-in beef
and beef offal from animals under 30 months of age. Similarly, the United States signed a
bilateral access agreement with Russia on November 19, 2006, and SPS measures, particularly
Russia’s SPS measures hindering exports of U.S. poultry and meat, were among the key issues 32
during the negotiations.

U.S. government and WTO reports and press releases frequently cite the benefits of the SPS and
TBT agreements and progress made, under these agreements, in resolving disputes and
facilitating trade between countries. However, some, among them food safety and environmental
advocacy organizations, and groups that have more broadly opposed efforts toward globalization
and toward harmonization of world trading rules, have long expressed skepticism. They have
argued that implementation of the agreements can result in “downward harmonization” rather
than upgraded health and safety standards. This can happen when, for example, a WTO dispute
settlement panel questions the scientific underpinnings of a U.S. safeguard, and/or the United
States agrees to an effectively lower standard in order to bring trade negotiations with another 33
country to a successful conclusion.
Others counter that the current trade agreements explicitly recognize the right of individual
nations, as well as states and localities, to enact stronger protections than international guidelines
if they believe they are appropriate. The United States is especially well-positioned against
challenges, because its health and safety policies are scientifically defensible, U.S. officials have
argued.
The WTO itself has asserted that countries can “to some extent apply the ‘precautionary 34
principle,’ a kind of ‘safety first’ approach” where scientific uncertainty exists. More
specifically, the precautionary principle suggests that if scientific evidence is insufficient or
inconclusive regarding a practice’s or product’s potential dangers to human, environmental,
animal, or plant health, that product or practice should be prohibited if there are reasonable
grounds for concern. The EU has been criticized by U.S. and other interests for shielding itself
behind this principle to impose otherwise scientifically unsupportable barriers to food imports

32 However, access to the Russian market has remained problematic; seeCRS Report RS22948, U.S.-Russia Meat and
Poultry Trade Issues, by Geoffrey S. Becker.
33 Such arguments were explored, for example, in a speech by Bruce Silverglade, Director of Legal Affairs at the
Center for Science in the Public Interest, a consumer advocacy organization. Entitled “Should the SPS Agreement Be
Amended? A Modest Proposal to Restore Public Support,” it was delivered April 4, 1998, at a public policy conference
at Georgetown University. Accessed at http://www.cspinet.org/reports/sps.htm.
34 Source: WTO, Understanding the WTO Agreement on Sanitary and Phytosanitary Measures. These are addressed in
Article 5.7, Article 3.3, and the preamble of the SPS agreement.





that exporting nations deem to be safe. On the other hand, some advocates believe that the SPS 35
agreement too severely limits use of the principle.
The effectiveness and flexibility of the SPS and TBT rules also are likely to be tested by rapidly
emerging changes in food production technology, such as biotechnology and nanotechnology.
Neither appeared to be imminent concerns when the agreements were finalized in 1994. Many
believe that the SPS and TBT agreements provide the foundation for developing transparent,
science-based trade guidelines, as well as an effective framework for resolving disputes in these
areas. Others have argued that the Doha round should have revisited the agreements more closely
with regard to these or other new technologies.
Nanotechnology may provide the next test of existing international SPS rules. A 2005 Duke Law
and Technology Review article argues that measures regulating trade in nanotechnology likely
would be subject to the SPS agreement and that it could be used to objectively balance the
relative risks and benefits of trade in nanotechnology products. But, as the same article cautions, 36
nanoparticles can present unique health and environmental risks.
The President must submit all FTAs to Congress, which in turn must pass implementing
legislation if the United States is to participate. FTAs have become a significant U.S. trade policy
tool. Each one can affect the U.S. economy, including the food and agricultural sector, and the
impact will vary across the range of crop and livestock products traded between the United States
and another FTA signatory.
Many Members of Congress are already following closely a number of ongoing SPS-related trade
disputes that, they believe, have negatively affected agricultural producers in their states and
districts. Also, lawmakers have expressed concern that as recently signed trade agreements lower
agricultural tariffs, countries may turn more and more to SPS measures to protect their farmers
from import competition. These Members have stated that SPS matters will be among the factors
they will consider in voting for new FTAs.
Meanwhile, international SPS rights and obligations could come into play if the U.S. Congress
considers legislation placing new restrictions and requirements on food imports. As noted, such
bills are being proposed in the wake of a number of highly publicized adulteration incidents
related to food and agricultural imports, notably from China. Any new measures are likely to be
closely scrutinized by U.S. trading partners for their adherence to international trade rules.

35 Friends of the Earth International, Trade and Peoples Food Sovereignty, position paper, April 2003. The document
also charged thatthe Codex is so heavily influenced by food and chemical corporations that the standards it sets may
be lower than those already in place in many nations.
36 Nanotechnology enables scientists and engineers to manipulate matter at the molecular and atomic levels in order to
obtain materials and systems with significantly improved properties. James D. Thayer, “The SPS Agreement: Can it
Regulate Trade in Nanotechnology? 2005 Duke L. & Tech. Rev. 0015. Accessed at http://www.law.duke.edu/journals/
dltr/articles/2005dltr0015.html.






Total
Trade Trade Exports Imports Selected U.S. SPS Concerns Selected Foreign SPS Concerns
Partner (Two-To From About U.S.
Way)
(FY2008 value in millions)
Canada $37,213 $17,009 $20,213 Fortified foods (e.g., cereals, orange juice) regulated as drugs. Mandatory retail country of origin labeling
(COOL) for specified food commodities;
longstanding complaint on S. Dakota and
other state bans on entry of some Canadian
cattle, swine and grain trucks.
EU 27,809 11,792 16,015 Longstanding problems with EU’s oversight of biotech, including Overly strict animal disease control rules,
iki/CRS-RL33472delayed approvals, restrictive labeling, traceability, and co-existence rules, and contradictory policies by many Member notably ban on ruminants and products due to BSE; failure to fully apply principle of
g/wStates. Barriers to animal product trade include EU meat “regionalization” in animal disease outbreaks;
s.orhormone directive (not based on science), U.S. poultry meat ongoing difficulties exporting milk products
leakrestrictions, lack of risk assessment behind some animal due to “Grade A” requirements; continuing
byproduct restrictions; unreasonable barriers to dietary obstacles to EU exports of potted plants;
://wikisupplements and to use of wood packaging materials. rule on solid wood packing materials; undue SPS obstacles to imports of citrus fruits,
httpplants/nursery stock; import procedures for
fruits and vegetables. Longstanding complaint a
on restrictions on EU poultry imports.
Mexico 26,890 15,647 11,243 SPS measures have created barriers to exports of certain U.S. Restrictive regulations for Mexican trucks;
agricultural goods, including grains, seed products, apples, stone SPS restrictions on melons.
fruit, pork, beef, poultry, citrus, wood and wood products, dry
beans, avocados, potatoes, eggs, and live animals. Periodic avian
flu-related poultry import restrictions; SPS procedures at border
do not always reflect U.S.-Mexico agreements.
China 17,208 11,753 5,455 Numerous issues, including overall lack of transparency on SPS Mandatory retail COOL for specified food
measures and failure to, or delay in, notifying WTO of such commodities; failure to expeditiously lift
measures; use of quarantine inspection permits to control suspension of Chinese imports of Ya pears
agricultural imports; questions regarding scientific basis of due to fungus concerns; restrictions on
various measures including ban on U.S. beef; periodic or ongoing apples; rule on solid wood packing materials;
bans on poultry due to AI concerns or to overly restrictive rule on importation of artificially dwarfed
pathogen standards; unjustified concerns about feed additives potted plants from China not necessary and




Total
Trade Trade Exports Imports Selected U.S. SPS Concerns Selected Foreign SPS Concerns
Partner (Two-To From About U.S.
Way)
(FY2008 value in millions)
(approved in U.S.) and zero tolerance for pathogens and animal not viable given China’s production system;
drug residues, all affecting U.S. pork and poultry imports; overly restrictions on imports of Chinese farmed
restrictive food additive standards; concerns about food labeling seafood and on dairy products and
rules, biotechnology rules. ingredients due to food safety concerns;
delayed approval to import certain cooked
poultry products.
Japan 14,571 13,847 724 Numerous, including increasing use of SPS, TBT standards to
block ag imports; often not based on science or international
guidelines, e.g., unwarranted fumigation of lettuce; continuing
unscientific ban on much U.S. beef due to BSE; overly restrictive
food additive and feed additive rules; some biotech oversight
concerns; unnecessary bans on U.S. poultry due to AI concerns.
iki/CRS-RL33472Failure to use international standards for pest risk analysis. Plant and animal quarantine system is one of most restrictive in the
g/wworld.
s.or
leakS. Korea 6,173 5,843 330 Overly restrictive food safety standards (such as not recognizing
food additives U.S. considers safe); delay in lifting ban on U.S.
://wikibeef due to BSE; not using regionalization in animal health rules; burdensome labeling requirements including on biotech
httpproducts; specific problems with functional and organic foods
imports.
Indonesia 5,971 2,250 3,721 Burdensome registration and testing requirements for all food
imports which are inconsistently enforced; restrictions on fruit
and vegetable imports due to unwarranted concerns about fruit
flies; unnecessary treatments required for apples, pears, cherries
where no pest threat exists.
Taiwan 3,884 3,506 378 Plant and animal quarantine measures not always based on
sound science, e.g., restrictions on agricultural imports due to
pesticide residues and feed additives acceptable in U.S.; GMO
labeling rules.
Brazil 3,371 670 2,701 Numerous SPS issues including biotech; scientifically Concerns about food facility registration and
unwarranted (BSE related) bans on U.S. low-risk beef, on shipment pre-notification provisions of U.S.
poultry and poultry products due to alleged lack of reciprocity, Bioterrorism Act.


and on Western U.S. wheat.


Total
Trade Trade Exports Imports Selected U.S. SPS Concerns Selected Foreign SPS Concerns
Partner (Two-To From About U.S.
Way)
(FY2008 value in millions)
Australia 3,333 856 2,477 Stringent SPS regime; bans on U.S. ag products have included
Florida citrus, stone fruit, poultry meat, and apples;
biotechnology issues.
WORLD $194,767 $115,450 $79,317
Source: Data are from USDA, Foreign Agricultural Service, “U.S. Trade Internet System” at http://www.fas.usda.gov/ustrade/. Except as noted, source for U.S. SPS
concerns is USTR, 2008 and 2007 National Trade Estimate Reports on Foreign Trade Barriers; sources for other countries’ concerns are various WTO documents including
Trade Policy Review: United States, March 2006; and minutes of SPS committee meetings.
Notes: Includes some food-related TBTs; see text for definition. This listing is intended to be illustrative, not comprehensive. For example, some foreign concerns about
U.S. SPS measures may be missing because more authoritative information was not readily available. Also, some issues listed here may have been resolved by this printing.
a. Source (part): European Commission, United States Barriers to Trade and Investment, Reports for 2006 and 2007. Issued February 2007 and April 2008, respectively.
iki/CRS-RL33472


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s.or
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://wiki
http



Complaining Target Nature of Complaint
Country Country (WTO dispute number) Status
U.S. Korea Inspection procedures for fresh Mutually satisfactory solution notified July 2001
fruits (WT/DS3)
U.S. Korea Inspection procedures for fresh Mutually satisfactory solution notified July 2001
fruits (WT/DS41)
U.S. Korea Shelf-life requirements for frozen Mutually agreed solution notified July 1995
processed meats and other
products (WT/DS5)
Canada Australia Import restrictions on fresh, chilled, or Mutually agreed solution notified May 2000
frozen salmon (WT/DS18)
U.S. Australia Import restrictions on fresh, chilled, or Mutually agreed settlement notified November 2000
frozen salmon (WT/DS21)
iki/CRS-RL33472Canada Korea Restrictions on treatment methods Mutually agreed solution notified April 1996
g/wfor bottled water (WT/DS20)
s.orU.S. EC (EU) Prohibition of meat from animals Suspension of concessions authorized July 26, 1999; however, disputes continue over application of
leaktreated with growth-promoting retaliatory tariffs (see text of this report for discussion)
hormones (WT/DS26)
://wikiCanada EC Prohibition of meat from animals Same panel handled both complaints (see above)
httptreated with growth-promoting
hormones (WT/DS48)
U.S. Japan “Varietal testing” requirement for Mutually agreed solution notified September 2001
fresh fruits (WT/DS76)
EC India Quantitative restrictions on Mutually agreed solution notified April 1998
agricultural and other products
(WT/DS96)
EC U.S. Restrictions on poultry imports Consultations requested August 18, 1997; pending
(WT/DS100)
Switzerland Slovakia BSE-related restrictions on cattle Consultations requested May 11, 1998; pending
and meat (WT/DS133)
India EC Restrictions on rice imports Consultations requested May 28, 1998; pending


(WT/DS134)


Complaining Target Nature of Complaint
Country Country (WTO dispute number) Status
Canada EC French measures affecting asbestos SPS agreement not invoked in the reports
(WT/DS135)
Canada EC Restrictions due to pine wood Consultations requested June 17, 1998; pending
nematodes (WT/DS137)
Canada U.S. State restrictions on movement of Consultations requested September 25, 1998; pending
trucks carrying live animals and
grains (WT/DS144)
U.S. Mexico Measures affecting trade in live Consultations requested July 10, 2000; pending
swine (WT/DS203)
Thailand Egypt GMO-related prohibitions on Consultations requested September 22, 2000; pending
imports of canned tuna with
soybean oil (WT/DS205)
Ecuador Turkey Import requirements for fresh Mutually agreed solution notified November 2002
fruit, especially bananas
iki/CRS-RL33472(WT/DS237)
g/wU.S. Japan Restrictions on apples due to fire Dispute panel established July 2004; found Japanese restrictions are contrary to SPS agreement July
s.orblight (WT/DS245) 2005; mutually agreed solution notified August 2005
leak
Hungary Turkey BSE-related restrictions on pet Consultations requested May 3 2002; pending
://wikifood imports (WT/DS256)
httpPhilippines Australia Restrictions on fresh fruits and Panel established August 2003; reports not yet circulated
vegetables, including bananas
(WT/DS270)
Philippines Australia Restrictions on pineapple Consultations requested October 18, 2002; pending
(WT/DS271)
EC India Export and import policy Consultations requested December 23, 2002; pending
(WT/DS279)
Nicaragua Mexico Phytosanitary restrictions on black Mutually agreed solution notified March 2004


beans (WT/DS284)


Complaining Target Nature of Complaint
Country Country (WTO dispute number) Status
EC Australia Quarantine regime (WT/DS287) Panel established November 2003; mutually agreed solutions notified March 2007
US EC Moratorium on approvals on Panel established August 2003; same panel handled three complaints; WTO dispute panel interim
marketing of biotech products confidential report ruled February 7, 2006 that a moratorium had existed, that bans on EU-approved
(WT/DS291) GE crops in six EU member countries violated WTO rules, and that EU failed to ensure that its
Canada EC Moratorium on approvals on approval procedures were conducted without “undue delay.” Other U.S. claims rejected. Panel reports adopted November 2006; parties’ mutually agreed time for implementation (1 year) ended November
marketing of biotech products 21, 2007; U.S.-EU negotiations continued in 2008
(WT/DS292)
Argentina EC Moratorium on approvals on
marketing of biotech products
(WT/DS293)
Hungary Croatia Transmissible spongiform Consultations requested July 2003; pending
encephalopathy (TSE)-related
restrictions on live animals and
meat products (WT/DS297)
iki/CRS-RL33472New Zealand Australia Phytosanitary measures required Consultations requested August 2007; pending
g/wfor apples (WT/DS367)
s.or
leakSource: WTO Committee on Sanitary and Phytosanitary Measures. Review of the Operation and Implementation of the Agreement on the Application of Sanitary and Phytosanitary Measures (G/SPS/36), July 11, 2005; also, WTO updates posted on the Internet through May 2008 at http://www.wto.org/english/tratop_e/dispu_e/
://wikidispu_status_e.htm.
httpNote: Italics indicate complaint referred to a WTO dispute settlement panel.






Geoffrey S. Becker
Specialist in Agricultural Policy
gbecker@crs.loc.gov, 7-7287